Dupree v. People of the State of California
Filing
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ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/4/2015 DIRECTING the Clerk to randomly assign a US District Judge to this action; AND RECOMMENDING that petitioner's application for a writ of habeas corpus be denied. Assigned and referred to Judge Troy L. Nunley; Objections due within 14 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LEIGHTON JAMES DUPREE,
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Petitioner,
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No. 2:13-cv-0870-EFB P
vs.
HEIDI M. LACKNER,1
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ORDER AND FINDINGS AND
RECOMMENDATIONS
Movant.
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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. Petitioner challenges the sentence he received on October 1, 2010,
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in the Yolo County Superior Court, after being convicted of second degree burglary with two
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prior prison terms and three prior convictions for robbery. He claims that the trial court abused
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its discretion when it denied his motion to dismiss one of his two prior “strike” convictions at the
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time of his sentencing in the interests of justice. Upon careful consideration of the record and the
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applicable law, it is recommended that petitioner’s application for habeas corpus relief be denied.
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The “People of the State of California” was previously named as the respondent. The
court now substitutes the correct respondent, the Warden of Sierra Conservation Center, where
petitioner is presently incarcerated. See Rumsfeld v. Padilla, 542 U.S. 435 (2004) (in habeas
challenges to present physical confinement, the proper respondent is the warden of the facility
where the prisoner is being held).
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I. Background
In its unpublished memorandum and opinion affirming petitioner’s judgment of
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conviction on appeal, the California Court of Appeal for the Third Appellate District provided the
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following factual summary:
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Defendant Leighton James Dupree was found guilty by a jury of
second degree burglary. (Pen.Code, § 459.) FN1 The jury was
unable to reach a verdict on a charge of second degree robbery. (§
212.5, subd. (c).) In a bifurcated proceeding, the jury found true
three prior strike convictions (§ 667, subds.(b)–(i)), one of which
the People later conceded did not constitute a strike. Additionally,
defendant admitted having served two prior prison terms. (§ 667.5,
subd. (b).) Defendant was sentenced to state prison for an
indeterminate term of 25 years to life plus a determinate term of
two years.
FN1. Undesignated statutory references are to the Penal Code.
Defendant appeals, contending the trial court abused its discretion
by denying his request to dismiss his prior strike convictions.
Finding no abuse of discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 12, 2010, defendant, who was 62 years old, entered a
bank and asked a teller to see the manager. When the teller asked
him why he wanted to speak to the manager, defendant replied,
“[B]elieve it or not, this is a robbery.” Defendant followed the
teller as she went to notify the branch services manager, who went
to get the branch manager. Defendant then followed the teller back
to her window. Approximately 30 seconds later, the bank manager
approached and asked defendant what she could do for him.
Defendant told her “this is a robbery” and “give me your money.”
The bank manager removed $373 from the teller's cash drawer and
gave it to defendant. Defendant put the money in his jacket pocket
and walked out of the bank. He waited for the signal light to
change, then crossed the street in the crosswalk, and proceeded
down the sidewalk at a normal pace. He was apprehended as he
walked down the street.
Once handcuffed, defendant stated, “[A]ll I did was rob a bank.”
During a police interview later that day, he explained that he had
lost his job the day before and needed money, and that he decided
to rob the bank before entering. Defendant stated he had been
“drinking since Christmas” and that he drank some beer that
morning. However, the police detective who conducted the
interview testified that defendant did not have any difficulty
recalling events or communicating during the interview and did not
appear to be under the influence of alcohol. Bank personnel also
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testified that defendant did not appear to be intoxicated during the
robbery. Based on a blood test several hours after the offense, it
was estimated that defendant's blood–alcohol content could have
been between 0.16 and 0.19 percent at the time of the offense.
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At trial, defendant testified he was first diagnosed as an alcoholic in
1970 and that he lost his job shortly before the incident at the bank
because he was drinking and did not show up for work. He
described himself as a binge drinker and stated that, before his
arrest, he had been on a binge since a couple of days before
Christmas. Defendant testified he drank beer on the morning of his
arrest, as well as the night before. He maintained he recalled going
out and making various stops that day, and that the next thing he
remembered was sitting on the sidewalk with a police officer
standing behind him. He stated he did not remember entering the
bank or committing the robbery. Defendant testified he had
experienced blackouts before from drinking, and he believed he had
suffered a blackout on this occasion.
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A forensic psychiatrist who met with defendant and had reviewed
his criminal and medical records testified that defendant's history
suggested he had some tolerance to alcohol and his conduct after
the robbery was consistent with impaired judgment.
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Defendant had a 1987 strike conviction in Washington for first
degree burglary and assault with great bodily injury, stemming
from an incident in which he choked and beat his common law
wife's 69 - year - old father to obtain money from him and his wife.
In 1996, defendant was convicted of robbery – another strike – in
which, according to the People, he robbed a bank, then led the
police on a high speed car chase during which he hit another
vehicle. Defendant was sentenced to 12 years in state prison for
this offense. Defendant also had convictions in 1965 for second
degree burglary, in 1973 for robbery,FN2 in 1981 for vehicle theft,
in 1984 for assault and possession of a weapon, in 1993 for theft,
and in 2007 for battery. In addition, defendant had a driving –under
– the – influence arrest in 2009 that had yet to be resolved.
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FN2. This conviction initially was charged as a strike, but it was
dismissed because the People conceded the elements of the offense
in Washington at the time defendant committed the offense did not
correspond precisely to the elements for robbery in California.
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People v. Dupree, No. C067726, 2012 WL 1773275, at **1-2 (Cal.App.3 Dist., May 18, 2012).
After the California Court of Appeal affirmed petitioner’s judgment of conviction, he filed
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a petition for review in the California Supreme Court. Resp’t’s Lodg. Doc. 7. That petition was
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summarily denied by order dated July 25, 2012. Resp’t’s Lodg. Doc. 8.
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II. Standards of Review Applicable to Habeas Corpus Claims
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An application for a writ of habeas corpus by a person in custody under a judgment of a
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state court can be granted only for violations of the Constitution or laws of the United States. 28
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U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or
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application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010);
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Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir.
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2000).
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Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim (1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
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For purposes of applying § 2254(d)(1), “clearly established federal law” consists of
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holdings of the United States Supreme Court at the time of the last reasoned state court decision.
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Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ___ U.S.
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___, 132 S.Ct. 38 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v.
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Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “may be persuasive in determining
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what law is clearly established and whether a state court applied that law unreasonably.” Stanley,
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633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit
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precedent may not be “used to refine or sharpen a general principle of Supreme Court
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jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall
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v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155
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(2012) (per curiam)). Nor may it be used to “determine whether a particular rule of law is so
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widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court,
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be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of
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an issue, it cannot be said that there is “clearly established Federal law” governing that issue.
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Carey v. Musladin, 549 U.S. 70, 77 (2006).
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A state court decision is “contrary to” clearly established federal law if it applies a rule
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contradicting a holding of the Supreme Court or reaches a result different from Supreme Court
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precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).
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Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the
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writ if the state court identifies the correct governing legal principle from the Supreme Court’s
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decisions, but unreasonably applies that principle to the facts of the prisoner’s case. 2 Lockyer v.
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Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002
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(9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply because that
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court concludes in its independent judgment that the relevant state-court decision applied clearly
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established federal law erroneously or incorrectly. Rather, that application must also be
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unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473
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(2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent
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review of the legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”).
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“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as
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‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.
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Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S.
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652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal
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court, a state prisoner must show that the state court’s ruling on the claim being presented in
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federal court was so lacking in justification that there was an error well understood and
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comprehended in existing law beyond any possibility for fairminded disagreement.” Richter,131
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S. Ct. at 786-87.
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Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
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If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing
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court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,
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527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)
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(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of §
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2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering
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de novo the constitutional issues raised.”).
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The court looks to the last reasoned state court decision as the basis for the state court
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judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If
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the last reasoned state court decision adopts or substantially incorporates the reasoning from a
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previous state court decision, this court may consider both decisions to ascertain the reasoning of
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the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When
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a federal claim has been presented to a state court and the state court has denied relief, it may be
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presumed that the state court adjudicated the claim on the merits in the absence of any indication
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or state-law procedural principles to the contrary.” Richter, 131 S. Ct. at 784-85. This
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presumption may be overcome by a showing “there is reason to think some other explanation for
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the state court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797,
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803 (1991)). Similarly, when a state court decision on a petitioner’s claims rejects some claims
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but does not expressly address a federal claim, a federal habeas court must presume, subject to
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rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___,
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___, 133 S.Ct. 1088, 1091 (2013).
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Where the state court reaches a decision on the merits but provides no reasoning to
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support its conclusion, a federal habeas court independently reviews the record to determine
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whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.
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Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo
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review of the constitutional issue, but rather, the only method by which we can determine whether
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a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no
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reasoned decision is available, the habeas petitioner still has the burden of “showing there was no
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reasonable basis for the state court to deny relief.” Richter, 131 S. Ct. at 784.
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A summary denial is presumed to be a denial on the merits of the petitioner’s claims.
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Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze
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just what the state court did when it issued a summary denial, the federal court must review the
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state court record to determine whether there was any “reasonable basis for the state court to deny
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relief.” Richter, 131 S. Ct. at 784. This court “must determine what arguments or theories ...
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could have supported, the state court's decision; and then it must ask whether it is possible
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fairminded jurists could disagree that those arguments or theories are inconsistent with the
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holding in a prior decision of [the Supreme] Court.” Id. at 786. The petitioner bears “the burden
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to demonstrate that ‘there was no reasonable basis for the state court to deny relief.’” Walker v.
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Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 131 S. Ct. at 784).
When it is clear, however, that a state court has not reached the merits of a petitioner’s
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claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal
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habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462
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F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
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III. Failure to Strike Prior Conviction
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Petitioner’s sole claim before this court is that the trial court abused its discretion when it
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denied petitioner’s motion to dismiss one of his two prior felony “strike” convictions in the
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furtherance of justice at the time of his sentencing. ECF No. 1 at 22, 28. 3 He argues that the
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sentencing judge did not consider “all relevant sentencing factors” and “failed to consider the
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viable sentencing alternative of a second strike sentence.” Id. Petitioner contends that the
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sentencing judge should have dismissed at least one of his prior convictions because: (1) he was
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63 years old at the time of his sentencing; (2) he used “no weapons or force during the
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commission of the offense;” (3) he was an alcoholic “who committed the crimes towards the end
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of an alcoholic binge;” and (4) his prior strikes occurred 23 and 14 years before the current
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offense and were therefore “remote in time.” Id. Petitioner also argues that a sentence of 25
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years-to-life for a 63 year old man convicted only of second degree burglary without the use of
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Page number citations such as this one are to the page numbers reflected on the court’s
CM/ECF system and not to page numbers assigned by the parties.
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force “constitutes a grossly excessive sentencing undermining federal fairness in violation of the
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defendant’s Fourteenth Amendment right to due process.” Id.
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The California Court of Appeal denied petitioner’s challenge to his sentence. The court
reasoned as follows:
Defendant contends the trial court abused its discretion when it
declined to dismiss at least one of his prior strike convictions
because it did not consider all relevant factors when making its
ruling. As there is no evidence in the record to support this claim,
we reject it.
“‘[T]he Three Strikes law does not offer a discretionary sentencing
choice, as do other sentencing laws, but establishes a sentencing
requirement to be applied in every case where the defendant has at
least one qualifying strike, unless the sentencing court “conclud[es]
that an exception to the scheme should be made because, for
articulable reasons which can withstand scrutiny for abuse, this
defendant should be treated as though he actually fell outside the
Three Strikes scheme.”’” (People v. Carmony (2004) 33 Cal.4th
367, 377.)
“[I]n ruling whether to strike or vacate a prior serious and/or violent
felony conviction allegation or finding under the Three Strikes law,
. . . or in reviewing such a ruling, the court in question must
consider whether, in light of the nature and circumstances of his
present felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme's spirit, in whole or in
part, and hence should be treated as though he had not previously
been convicted of one or more serious and/or violent felonies.”
(People v. Williams (1998) 17 Cal.4th 148, 161.) “[P]reponderant
weight must be accorded to factors intrinsic to the scheme, such as
the nature and circumstances of the defendant's present felonies and
prior serious and/or violent felony convictions, and the particulars
of his background, character, and prospects.” (Ibid.) The
circumstances under which a defendant with strike priors may be
found to fall outside the spirit of the three strikes law must be
extraordinary. (People v. Philpot (2004) 122 Cal.App.4th 893,
905.)
The trial court's determination of whether to dismiss a strike is
subject to review for abuse of discretion. (People v. Williams,
supra, 17 Cal.4th at p. 162.) “[A] trial court will only abuse its
discretion in failing to strike a prior felony conviction allegation in
limited circumstances. For example, an abuse of discretion occurs
where the trial court was not ‘aware of its discretion’ to dismiss
[citation], or where the court considered impermissible factors in
declining to dismiss [citation].” (People v. Carmony, supra, 33
Cal.4th at p. 378.) It is defendant's burden to show that the trial
court abused its discretion by failing to strike a prior conviction.
(People v. Carmony, supra, 33 Cal.4th at pp. 374, 376–377.) “[A]n
appellant who seeks reversal must demonstrate that the trial court's
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decision was irrational or arbitrary.” (People v. Myers (1999) 69
Cal.App.4th 305, 309–310.)
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In the present matter, defendant's attorney filed a request pursuant
to section 1385 and People v. Romero (1996) 13 Cal.4th 497
(Romero), asking the trial court to strike defendant's prior strike
convictions. In support of the request, the attorney argued that
defendant “was at the tail end of a serious alcohol binge” when he
committed the current offense, the amount of money stolen was
small and was possessed only briefly, and he did not use force or
threats during the crime. The attorney noted that defendant had
been employed from 2006 until just before the offense, that he
showed remorse and took responsibility for the actions leading to
the crime, and that if he had not had an alcohol problem, the offense
“likely would not have occurred.” The attorney also pointed out
that defendant's most recent strike conviction occurred 15 years
earlier and did not involve “weapons or egregious force.” Finally,
defendant's attorney argued that, due to defendant's age, he would
be “an elderly man” by the time of his release if any prison sentence
was imposed, and that the facts of the current offense did not
suggest he was a danger.
The trial court denied defendant's motion, ruling that dismissal of
his prior strike convictions would not be in the interest of justice.
The court explained: “Looking at [defendant's] past conduct,
including the nature and circumstances of his prior strikes, and his
conduct in this case, including the nature and circumstances of this
offense, looking at his background, his character, and his prospects,
I cannot find that he should be deemed to be outside the spirit of the
three strikes law.”
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The trial court's denial of defendant's request to dismiss his prior
strike convictions was neither irrational nor arbitrary. Defendant's
history of criminal activity spans nearly 45 years and includes at
least seven prior felony convictions and numerous parole violations.
Defendant's lengthy and serious criminal record and his chronic
alcoholism support the trial court's exercise of discretion, as does
the serious nature of his current offense. The trial court acted well
within its discretion in finding defendant did not fall outside the
spirit of the three strikes law.
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Defendant claims the trial court abused its discretion by not taking
into account various factors related to his background and current
offense. To the contrary, all of the factors cited by defendant in
support of this claim – his age, his alcoholism, his employment
history, the lack of violence in the current offense, the “remoteness”
of the prior strike convictions, and the availability of alternatives to
a third strike sentence – were addressed in his written request to
dismiss his strike convictions or in his attorney's comments at his
sentencing hearing. At the hearing, the trial court stated it had read
and considered the probation report, defendant's request to dismiss
his prior strikes and the opposition thereto, the forensic
psychiatrist's report, and a letter from defendant. The trial court
also stated it had taken into consideration the nature and
circumstances of the current offense and defendant's past conduct,
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as well as his background, character and prospects. Nothing in the
record casts doubt on the trial court's statement that it considered all
of this information when making its ruling. Nor is there any
suggestion in the record that the trial court was unaware of its
discretion or that it relied on improper factors. “The trial court is
not required to state reasons for declining to exercise its discretion
under section 1385 [citation].” (People v. Gillispie (1997) 60
Cal.App.4th 429, 433.) “The court is presumed to have considered
all of the relevant factors in the absence of an affirmative record to
the contrary.” (People v. Myers, supra, 69 Cal.App.4th at p. 310,
citing People v. Kelley (1997) 52 Cal.App.4th 568, 582.) “[E]rror
must affirmatively appear on the record. On a silent record in a
post - Romero case, the presumption that a trial court ordinarily is
presumed to have correctly applied the law should be applicable.”
(People v. Gillispie, supra, at p. 434, cited with approval in People
v. Carmony, supra, 33 Cal.4th at p. 378.)
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Defendant points to an array of facts that he maintains militated in
favor of dismissing one or both of his strikes. But, on appeal, the
issue is not whether these factors might possibly have supported a
ruling contrary to the one issued by the trial court. Rather, we
review the record to determine whether the ruling the trial court
made was an abuse of discretion. “[A] ‘“decision will not be
reversed merely because reasonable people might disagree. ‘An
appellate tribunal is neither authorized nor warranted in substituting
its judgment for the judgment of the trial judge.’”’” (People v.
Carmony, supra, 33 Cal.4th at p. 377.)
In sum, this is not “an extraordinary case – where the relevant
factors . . . manifestly support the striking of a prior conviction and
no reasonable minds could differ.” (People v. Carmony, supra, 33
Cal.4th at p. 378.) Accordingly, we conclude the trial court did not
abuse its discretion in denying defendant's request to dismiss his
prior strike convictions.
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Dupree, 2012 WL 1773275 at **2-4. This decision by the California Court of Appeal on
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petitioner’s claim of sentencing error is the operative decision for purposes of AEDPA review of
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petitioner’s claim. See Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000) (district
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court “look[s] through” unexplained California Supreme Court decision to the last reasoned
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decision as the basis for the state court’s judgment).
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Petitioner’s federal habeas challenge to the trial court’s denial of his motion pursuant to
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People v. Romero essentially involves an interpretation of state sentencing law. As explained
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above, “it is not the province of a federal habeas court to reexamine state court determinations on
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state law questions.” Wilson, 131 S. Ct. at 16 (quoting Estelle, 502 U.S. at 67). This Court is
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bound by the state court’s interpretation of state law. Aponte v. Gomez, 993 F.2d 705, 707 (9th
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Cir. 1993). So long as a sentence imposed by a state court “is not based on any proscribed federal
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grounds such as being cruel and unusual, racially or ethnically motivated, or enhanced by
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indigency, the penalties for violation of state statutes are matters of state concern.” Makal v. State
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of Arizona, 544 F.2d 1030, 1035 (9th Cir. 1976). Thus, “[a]bsent a showing of fundamental
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unfairness, a state court’s misapplication of its own sentencing laws does not justify federal
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habeas relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994).
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The sentencing judge in this case declined to strike any of petitioner’s prior “strike”
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convictions only after considering all of the relevant circumstances and applying the applicable
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law. As indicated by the California Court of Appeal, the sentencing judge’s conclusion that
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petitioner did not fall outside the spirit of California’s Three Strikes Law was not unreasonable
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under the circumstances of this case. After a careful review of the sentencing proceedings, the
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undersigned finds no federal constitutional violation in the state trial judge’s exercise of his
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sentencing discretion. If petitioner’s sentence had been imposed under an invalid statute and/or
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was in excess of that actually permitted under state law, a federal due process violation would be
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presented. See Marzano v. Kincheloe, 915 F.2d 549, 552 (9th Cir. 1990) (due process violation
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found where the petitioner’s sentence of life imprisonment without the possibility of parole could
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not be constitutionally imposed under the state statute upon which his conviction was based).
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However, petitioner has not made a showing that such is the case here. Nor has petitioner
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demonstrated that the trial court’s decision not to strike his prior second degree murder conviction
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was fundamentally unfair. In short, petitioner has failed to show that the trial court violated his
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federal constitutional rights in denying his motion pursuant to Cal. Penal Code § 1385 and People
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v. Romero. Accordingly, he is not entitled to relief on the claim before this court.
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IV. Conclusion
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Accordingly, it is hereby ORDERED that the Clerk of Court is directed to randomly
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assign a United States District Judge to this action.
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Further, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of
habeas corpus be denied.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
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shall be served and filed within fourteen days after service of the objections. Failure to file
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objections within the specified time may waive the right to appeal the District Court’s order.
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Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
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1991). In his objections petitioner may address whether a certificate of appealability should issue
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in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section
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2254 Cases (the district court must issue or deny a certificate of appealability when it enters a
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final order adverse to the applicant).
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DATED: May 4, 2015.
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